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US court considers potentially landmark LGBT housing case

By MICHAEL TARM
AP Legal Writer

Feb. 6, 2018

CHICAGO (AP) – An appeals court heard arguments Tuesday in a potentially landmark case in which a 70-year-old lesbian accused a suburban Chicago senior living center of doing nothing to stop fellow residents from hurling homophobic slurs at her, spitting on her and even striking her because of her sexual orientation.

Marsha Wetzel, who moved to the Glen Saint Andrew Living Community in Niles after her partner of 30 years died in 2013, was told by one resident that “homosexuals will burn in hell;” another intentionally rammed her scooter with a walker, toppling her and bruising her arm, filings by her attorneys allege.

A three-judge panel of the 7th U.S. Court of Appeals in Chicago heard oral arguments in the case Tuesday, 1 year after trial-level Judge Samuel Der-Yeghiayan tossed the lawsuit, saying Wetzel hadn’t shown that administrators themselves displayed “any discriminatory animus, motive or intent.”

If the court revives Wetzel’s lawsuit, the case could help establish that Fair Housing Act protections cover LGBT tenants harassed by other tenants. The panel is expected to rule within the next several weeks.

A lawyer for the privately owned facility, Lisa Hausten, has downplayed the incidents involving Wetzel, saying they stemmed from “on-going squabbles with an older male resident and a couple of isolated incidents with two elderly females.”

“[Her] quarrels with her fellow seniors, regardless of how cranky or offensive their words, are not sufficient to maintain an action under the Fair Housing Act,” she wrote. Wetzel’s lawyer, Karen Loewy, disputes that portrayal, saying her client lived in constant fear at the facility.

“I don’t see any case cited where a landlord is held liable for tenant-on-tenant harassment,” he told Loewy. He said he also worried that broadening the law could put administrators in the untenable position of trying to discern which tenant is the abuser and which the abused.

Loewy, from the New York-based LGBT rights group Lambda Legal, responded that it was not a matter of landlords being obliged to step in to stop run-of-the-mill disputes. She said it involved the kind of “severe or pervasive harassment” that fundamentally undermined Wetzel’s rights.

Another panelist, Judge Diane Wood, sounded sympathetic to the arguments from Wetzel’s legal team. Wood added that nobody was suggesting administrators at the living center “applauded” the abuse as it happened – only that they “shrugged their shoulders” when they learned about it.

Wood and Hamilton were appointed by then-President Bill Clinton. The third judge on the panel, Michael Kanne, spoke only briefly during the hearing. He was appointed by Ronald Reagan.